What is SEP-15?
Special Experimental Project Number 15 or SEP-15 derives from section 502 of title 23, and it allows the Secretary to waive the requirements of title 23 and the regulations under title 23 on a case-by-case basis. SEP-15 allows FHWA to experiment in four major areas of project delivery - contracting, right-of-way acquisition, project finance, and compliance with the FHWA's National Environmental Policy Act (NEPA) process and other environmental requirements.
While FHWA has long encouraged increased private sector participation in Federal-aid projects, SEP-15 allows FHWA to actively explore much needed changes in the way we approach the oversight and delivery of highway projects to further the Administration's goals of reducing congestion and preserving our transportation infrastructure.
What are the goals of SEP-15?
The goals of SEP-15 are to increase project delivery flexibility, encourage innovation, improve timely project construction, and promote public-private partnerships. A key feature of SEP-15 is that it will allow FHWA to identify current FHWA laws, regulations, and practices that inhibit greater use of public private partnerships ( P3s) and private investment in transportation improvements. At the same time, it will allow us to develop procedures and approaches that address these impediments.
What is an eligible project?
An eligible project is one that will test an innovative project delivery technique that is prohibited by a current provision of title 23 of the United States Code, FHWA regulations, or FHWA policy. SEP-15 projects cannot be used to modify environmental and other requirements external to title 23 of the United States Code. The State must demonstrate that the experimental feature is one that will advance the goals of the SEP-15 program. (See FAQ 2.) States are encouraged to discuss potential applications with the appropriate staff from FHWA's Division and Headquarters prior to submitting an application or concept paper.
Can SEP-15 be done a programmatic basis?
No, SEP-15 is not a programmatic change. Rather, it is designed for use on a project-by-project basis to experiment with solutions to impediments to the use of public-private partnerships and innovative project delivery techniques.
What are the procedural requirements under SEP-15?
SEP-15 requires a State DOT to submit an application to the FHWA Division Office. If an application is approved, FHWA and the State DOT will negotiate an Early Development Agreement (EDA) to establish the parameters of the approved experimental features. More information can be found in the SEP-15 Implementation Procedures document located on this website.
What does a SEP-15 Application look like?
The SEP-15 Application is the formal documentation of an applicant's request for the use of an experimental feature in the project development process.
The SEP-15 Application shall provide the following:
States are encouraged to view prior applications and the responses to those applications for guidance. This information is posted on this website.
Should an application be oriented around the project or around the experimental features of the project?
Both. The application should include a description how the State plans on implementing the experimental features within the context of the specific project. Due to the experimental nature of SEP-15, FHWA has not produced a SEP-15 application form. Applicants, however, are encouraged to review the SEP-15 approval letters to see the type of information that should be included in a SEP-15 application. This information is posted on this website.
What is the anticipated turn around time from date an application is submitted?
This will vary depending on the complexity of the application. Most applications will be answered within 60 days.
Can a State add projects to an approved SEP-15 application or must a new application be submitted?
Projects may be added to an approved SEP-15 application when the application was used for a corridor or a program composed of multiple projects. Assuming the additional project meets SEP-15 requirements, it can be added to an existing SEP-15 application by amending the application. A State must submit the amendments to FHWA and FHWA will review and decide whether to accept the amendments. The amendments will be included in the Early Development Agreement (EDA).
Is there a screening mechanism that will assist the State and FHWA in determining what is an appropriate project for administration under SEP-15?
A State may submit a SEP-15 Concept Paper to the FHWA Division Office. A Concept Paper is a short narrative that articulates the basic elements of the applicant's proposed use of SEP-15 and provides the basis for FHWA to offer the applicant a preliminary assessment of the viability of potential experimental features as well as information about lessons learned from previous SEP-15 projects relative to the proposed project.
What is the SEP-15 Steering Committee?
The SEP-15 Steering Committee is responsible for the overall management and oversight of SEP-15. Responsibilities include:
Members include the Chief Counsel; the Associate Administrator for Planning, Environment, and Real Estate Services; the Associate Administrator for Infrastructure; the Associate Administrator for Policy; the P3 Program Manager; and the Director of Field Services, Southern.
What criteria will be used to evaluate SEP-15 applications?
SEP-15 applications will be reviewed based on the following criteria:
If an experimental feature is not prohibited under current law or policy or if it concerns a law or policy outside of title 23, then the project will not be considered an SEP-15 candidate. Also, if an SEP-15 proposal does not extend beyond procurement issues covered by SEP-14, then the project will be considered under SEP-14, rather than SEP-15.
The overall intent of the SEP-15 program is to foster innovation and explore the full range of opportunities to make the project delivery process more efficient. Any proposals that meet this intent and are consistent with the criteria noted above will be given strong consideration.
When is a project considered ripe for application to SEP-15?
The ripeness of an SEP-15 application will vary depending on the elements of the project development process that are being adjusted or changed. Generally, a SEP-15 Application will be submitted prior to the start of a project, but there may be circumstances where funding mechanisms change or some other fundamental issue drives the need for administration of a project under the SEP-15 program.
How are SEP-15 Concept Papers processed?
A State DOT may submit an SEP-15 Concept Paper to the Division Administrator, who will forward it to the P3 Program Manager. The P3 Program Manager will coordinate the review of the concept paper with the SEP-15 Steering Committee and the Division Administrator. The SEP-15 Steering Committee and Division Administrator will review the SEP-15 Concept Paper concurrently and determine if the proposed approach is appropriate for the SEP-15 program. FHWA will usually provide comments to the State within 60 days.
How are SEP-15 Applications processed?
State DOTs submit the SEP-15 Application to the Division Administrator. The Division Administrator will forward the application to the P3 Program Manager. The P3 Program Manager will coordinate the review of the application with the SEP-15 Steering Committee and the Division Administrator. The Steering Committee and the Division Administrator will review the application concurrently. The review will be focused on assessing whether the proposed experimental features are appropriate for administration under the SEP-15 program or are precluded from further consideration due to legal or policy constraints. A recommendation will be made by the Steering Committee to the Deputy Administrator, who will make the final decision. FHWA's acceptance or return of the SEP-15 Application will be provided within approximately 60 days.
What is the role of FHWA headquarters and the Division Offices?
The FHWA Division Offices and Headquarters staff will work as a team to review SEP-15 Concept Papers and Applications, and develop the Early Development Agreement (EDA). The Division Office will oversee the delivery of the SEP-15 project.
What is an Early Development Agreement (EDA)?
An Early Development Agreement (EDA) is a document that is developed jointly between the State DOT and FHWA. The EDA describes the parameters for the implementation of experimental features of the SEP-15 project. For each experimental feature identified in the EDA, the EDA will identify the specific roles of all parties, define procedures, and establish timeframes and other conditions under which the project will be administered. More information can be found in the SEP-15 Implementation Procedures document located on this website.
Are there any reporting requirements for approved SEP-15 projects?
Yes. Upon the completion of a SEP-15 project, the State will be responsible for submitting an independently prepared report that summarizes lessons learned from the implementation of the experimental feature(s) and from the SEP-15 process. These reports shall evaluate the relative success of the process, its overall impact on the project, and recommend whether the experimental features should be made routine through statutory or regulatory changes. The report should include an explanation of how the changes will improve the delivery of the Federal-aid highway program.
Can SEP-15 be used on multi-modal projects?
Yes, but the experimental features must be confined to the provisions of 23 U.S.C.
Can SEP-15 be used to experiment with legal authority outside of title 23? Can SEP-15 be used to experiment with State legal authority?
No, SEP-15 may not be used to experiment outside of title 23 nor can it be used to experiment with State law. Other than areas under title 23 identified for experimentation, applicants must fully comply with all other applicable State and Federal laws and regulations, such as NEPA and other environmental requirements. For example, States will have to follow the same environmental requirements under SEP-15 as they would for any other project, but may be permitted to experiment with the procedures used to accomplish such requirements.